Citation Nr: 0117805
Decision Date: 07/05/01 Archive Date: 07/05/01
DOCKET NO. 00-24 456 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Cleveland,
Ohio
THE ISSUE
Whether a reduction in the award of VA death pension
benefits, effective from October 1, 1998, was proper.
ATTORNEY FOR THE BOARD
A. C. Mackenzie, Counsel
INTRODUCTION
The veteran served on active duty from July 1969 to February
1970. He died in September 1998, and the appellant is his
widow.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from an October 2000 decision issued by the
Department of Veterans Affairs (VA) Regional Office (RO) in
Cleveland, Ohio.
FINDING OF FACT
In view of the applicable VA laws and regulations, the
appellant's death pension benefits were properly reduced,
effective October 1, 1998, by the RO on account of her dual
entitlement to payments from the Social Security
Administration (SSA).
CONCLUSION OF LAW
The VA's reduction in the award of VA death pension benefits,
effective from October 1, 1998, was proper, and the
appellant's claim must be dismissed in view of its lack of
legal merit. 38 U.S.C.A. §§ 1521, 1541, 1542 (West 1991 &
Supp. 2000); Veterans Claims Assistance Act of 2000, Pub. L.
No. 106-475, 114 Stat. 2096 (2000); 38 C.F.R. §§ 3.3, 3.23,
3.24, 3.262 (2000).
REASONS AND BASES FOR FINDING AND CONCLUSION
The Board finds that VA has met its duty to assist the
appellant in the development of evidence and duty to notify
the appellant of evidence and information needed to
substantiate and complete her claim. The appellant has been
invited to submit or identify any additional information
concerning her receipt of income, the basis for the reduction
of her award of VA death pension benefits. She has submitted
information, but not identified any additional information
which must be obtained. In the statement of the case, she
was advised of the law and regulations pertaining to the
issue on appeal and the reasons and bases for the RO's action
in reducing her benefits. Thus, no further action on VA's
part is necessary to meet its obligations under the Veterans
Claims Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat.
2096 (2000).
In a December 1998 decision, the RO approved the appellant's
claim for death pension benefits, with monthly rates of
$775.00 from September 1, 1998; $488.00 from October 1, 1998;
$493.00 from December 1, 1998; and $341.00 from January 19,
2000. The rate for the first month was noted to be that
which would have been paid to the veteran if still living,
and the computation included the appellant's minor child, who
turned 18 on January 19, 2000, as well as payments from the
SSA to the appellant. In a December 1999 decision, the noted
rates were amended to $505.00 from December 1, 1999; $505.00
from February 1, 2000; and $349.00 from April 1, 2000. This
award encompassed payments for the appellant's child based on
school attendance until April 1, 2000. In a February 2000
decision, the $505.00 rate was extended to July 1, 2000 on
the basis of continued school attendance of the appellant's
child.
In August 2000, the RO contacted the appellant and informed
her of conflicting information as to her current payments
from the SSA. Later that month, she submitted copies of SSA
letters which set forth the amounts of her current SSA
benefits, essentially confirming the income identified by the
RO. In October 2000, after clarification, the RO sent the
appellant a letter informing her that it had been confirmed
that she was receiving dual entitlement to SSA benefits.
Accordingly, her monthly death pension benefit payments were
reduced to $215.00, effective from October 1, 1998; $218.00,
effective from December 1, 1998; $224.00, effective from
December 1, 1999; and $69.00, effective from July 1, 2000.
Here, as in its prior decision, the RO computed these amounts
by subtracting the appellant's annual SSA payments from the
maximum annual payable rates. See 38 U.S.C.A. §§ 1521, 1541,
1542 (West 1991 & Supp. 2000); 38 C.F.R. §§ 3.3, 3.23, 3.24
(2000) (concerning the payment of death pension benefits,
with references to rates published in the Federal Register).
The appellant's Notice of Disagreement was received by the RO
in November 2000. In this submission, the appellant called
into question the propriety of the reduction of her death
pension benefits on the basis that her SSA payments were not
sufficient for her to pay back the overpayment amount
resulting from the reduction. The appellant did not question
the actual computation of the reduction but instead argued
that the reduction of benefits would create "a large
hardship." In the Statement of the Case, the RO noted that
the VA maximum death pension income limits for a widow with
one child were $7607 (from October 1, 1998), $7706 (from
December 1, 1998), and $7891 (from December 1, 1999), while
the income limit in the case of a widow with no dependents
was $6026 from December 1, 1999, and that the appellant's
payments were reduced based on the amount of her SSA
payments.
The Board has reviewed the applicable laws and regulations in
this case. While the Board acknowledges the appellant's
arguments as to hardship, 38 C.F.R. § 3.23(b) (2000) clearly
reflects that the maximum rates of improved pension shall be
reduced by the amount of the countable income of the
surviving spouse. Income derived from old age and survivor's
insurance and disability insurance under title II of the
Social Security Act is considered income as a retirement
benefit. 38 C.F.R.
§ 3.262(f) (2000). In the Statement of the Case, the RO
informed the appellant that she should contact the RO if the
SSA rates utilized in the reduction were incorrect, but no
such response was received from the appellant. Accordingly,
the appellant's death pension benefits were properly reduced.
Since the laws, and not the facts of this case, is
dispositive, this claim lacks legal merit and must be denied.
See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).
ORDER
As the reduction in the award of VA death pension benefits,
effective from October 1, 1998, was proper, the appeal is
denied.
BARBARA B. COPELAND
Member, Board of Veterans' Appeals